Fausto v. U.S.

• Citation: 791 F.2d 1554
• Decision Date: 14 May 1986
• Docket Number: No. 85-2272,85-2272
• Parties: Joseph A. FAUSTO, Appellant, v. The UNITED STATES, Appellee. Appeal
• Court: United States Courts of Appeals. United States Court of Appeals for the Federal Circuit

Page 1554

791 F.2d 1554

Joseph A. FAUSTO, Appellant, v. The UNITED STATES, Appellee.

Appeal No. 85-2272.

United States Court of Appeals Federal Circuit.

May 14, 1986.

Joseph A. Fausto, pro se.

Richard K. Willard, Acting Asst. Atty. Gen., David M. Cohen, Director and Robert A. Reutershan, Asst. Director, Commercial Litigation Branch, Dept. of Justice, Washington, D.C., submitted for appellee. Deborah S. Ryan, Office of the Solicitor, Dept. of the Interior, Washington, D.C., of counsel.

ON SUGGESTION FOR REHEARING IN BANC

Before RICH, BALDWIN, and BISSELL, Circuit Judges.

ORDER

BISSELL, Circuit Judge.

Following this court's original decision in this appeal, Fausto v. United States, 783 F.2d 1020 (Fed.Cir.1986), the government filed a suggestion that the case be reheard by the court in banc. The basis for the suggestion is the government's belief that

the panel decision is contrary to the following decisions of the Supreme Court of the United States and the precedent of this circuit: Block v. Community Nutrition Institute, 104 S.Ct. 2450 (1984); Bush v. Lucas, 462 U.S. 367 [103 S.Ct. 2404, 76 L.Ed.2d 648] (1983); United States v. Erika, Inc., 456 U.S. 201 [102 S.Ct. 1650, 72 L.Ed.2d 12] (1982); United States v. Connolly, 716 F.2d 882 (Fed.Cir.1983) (en [sic] banc ), cert. denied, 104 S.Ct. 1414 (1984).

"A majority of the circuit judges who are in regular active service" have not ordered that the appeal be reheard by the court in banc. See Federal Rules of Appellate Procedure 35. However, because of the importance of the issue the panel will treat the suggestion as a petition for rehearing.

There has been no oral argument on the suggestion and Fausto, pro se, has not been ordered to respond to the government's brief. The panel has carefully reviewed the arguments and the authority cited in the government's brief. We conclude that the panel's original decision is not contrary to the precedent of the Supreme Court, nor of this court, and is not in conflict with the decisions of the regional circuits.

The government presents two questions for our review:

1. Whether the comprehensive remedial scheme established by Congress in the Civil Service Reform Act of 1978, Pub.L. No. 95-454, 92 Stat. 1111 (CSRA), precludes review of claims of former federal employees for back pay by the United States Claims Court under the Tucker Act.

2. Whether, prior to the enactment of the CSRA, there would have been jurisdiction under the Tucker Act to entertain Mr. Fausto's claim.

We first address the latter question.

I The Tucker Act

In its original opinion, this panel observed: "There is no doubt that prior to the CSRA an employee in Fausto's situation could have maintained a suit in the Court of Claims." Fausto, 783 F.2d at 1021. The government argues to the contrary that even if the CSRA had not been enacted Fausto "would not have had a Tucker Act cause of action."

First, the government argues that Fausto's removal did not violate any agency regulation. It is the government's position that the regulations which the agency violated, the grievance regulations, do not prescribe procedures that must be followed prior to removal. According to the government, "those regulations did not prescribe any pre-removal procedures," they only provided "that, after certain excepted service employees have been removed from their positions, they may file grievances to contest the validity of removal actions." [Emphasis in original.] We do not agree. The government is simply incorrect, the regulations do not require that grievances be filed only after the removal. Indeed, the regulations require that "[f]ormer employees must file a timely grievance concerning a matter appropriate for review under these procedures prior to separation in order to receive consideration." 370 DM 771.3.3B. Fausto clearly had the right to file his grievance before he was removed.

Second, the government argues that the grievance regulations would not have provided a basis for a Tucker Act suit because "the grievance regulations do not provide for the payment of compensatory damages." As support for that proposition the government cites United States v. Testan, 424 U.S. 392, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976), and Spagnola v. Stockman, 732 F.2d 908 (Fed.Cir.1984). However, the government has misread its authority.

The Supreme Court observed that

[t]he Tucker Act, of course, is itself only a jurisdictional statute; it does not create any substantive right enforceable against the United States for money damages.

....

... It follows that the asserted entitlement to money damages depends upon whether any federal statute "can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained." Eastport S.S. Corp. v. United States, 178 Ct.Cl. [599,] 607, 372 F.2d [1002,] 1009 [1967]....

....

... Where the United States is the defendant and the plaintiff is not suing for money improperly exacted or retained the basis of the federal claim--whether it be the Constitution, a statute, or a regulation--does not create a cause of action for money damages unless, as the Court of Claims has stated, that basis "in itself ... can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained." Eastport S.S. Corp. v. United States, 178 Ct.Cl. at 607, 372 F.2d at 1008, 1009.

Testan, 424 U.S. at 398, 400-402, 96 S.Ct. at 954-955. The basis for the Tucker Act suit here is not the grievance regulation but the Back Pay Act. That statute "does authorize retroactive recovery of wages whenever a federal employee has 'undergone an unjustified or unwarranted personnel action that has resulted in the withdrawal or reduction of all or a part of' the compensation to which the employee is otherwise entitled. 5 U.S.C. Sec. 5596(b)." Testan, 424 U.S. at 405, 96 S.Ct. at 956. There is no dispute that Fausto has been affected by such a personnel action--the agency has admitted as much. In this circumstance, the statute "was intended to grant a monetary cause of action." Testan, 424 U.S. at 407, 96 S.Ct. at 957. Furthermore, this case is distinct from both Spagnola v. Stockman, 732 F.2d 908 (Fed.Cir.1984) (employee detailed to perform duties of higher-level position without additional compensation) and United States v. Connolly, 716 F.2d 882 (Fed.Cir.1983) (in banc) (as employee of Postal Service no statutory basis for pay), because in those cases there was no provision of law mandating payment of money.

II The CSRA

With respect to the panel's evaluation of the effect of the CSRA on the Tucker Act remedy otherwise available, the government asserts that "the enactment of the CSRA precludes direct judicial review of personnel claims by federal employees that are not subject to review under the remedial scheme of the CSRA." This proposition is said to be supported by the "overwhelming weight of appellate authority" in the Supreme Court, in this circuit, and in the regional circuits. We have carefully reviewed all the cited authority as well as the authority disclosed in our own research. We conclude that the panel's original decision is not contrary to the precedent in the Supreme Court, is fully consistent with the precedent of this circuit, and is not inconsistent with the decisions of the regional circuits (the apparent conflict, on thoughtful analysis, being no conflict at all).

Chapter 75 of the CSRA addresses adverse actions. The relevant portions of the CSRA, codified at 5 U.S.C. Secs. 7511-7513 (1982), delineate certain rights provided to an "employee," as defined in Sec. 7511. Deleting restrictions not pertinent to this discussion, for purposes of this portion of the CSRA an employee is defined to include "an individual in the competitive service" and "a preference eligible in an Executive agency in the excepted service." Sec. 7511(a)(1). Fausto is not in the competitive service; he is in the excepted service. And although he is in an executive agency he is not a preference eligible. Accordingly, he is not an employee as defined in Sec. 7511; he is not subject to the adverse action provisions of the CSRA. Consequently, we see no basis for the government's apparent concern that this decision will have an effect on those persons who are indeed subject to the adverse action provisions of the CSRA. This case deals solely with a person in an executive agency in the excepted service who is not a preference eligible. Moreover, there has been no argument about and we do not address whether, in the absence of the agency regulation, Fausto "as an [excepted service] employee, could have been summarily discharged by the [agency] at any time without the giving of a reason." Vitarelli v. Seaton, 359 U.S. 535, 539, 79 S.Ct. 968, 972, 3 L.Ed.2d 1012 (1959).

A. Supreme Court Precedent

In Block v. Community Nutrition Institute, 467 U.S. 340, 104 S.Ct. 2450, 81 L.Ed.2d 270 (1984), the Supreme Court considered whether ultimate consumers of dairy products could obtain judicial review of milk market orders issued by the Secretary of Agriculture pursuant to an act of Congress. The Court concluded that consumers could not obtain judicial review of the orders. The analysis in Community Nutrition may support the proposition that employees subject to the adverse action provisions of the CSRA are precluded from direct judicial review but it is no support for the proposition that the CSRA has silently repealed a remedy for persons the CSRA does not cover. Recognizing that a Tucker Act remedy is still available to persons like Fausto who are not covered by the CSRA will in no way frustrate the statutory purpose of the CSRA, it will not undermine the congressional preference for an administrative remedy, see McClary v. United States, 775 F.2d 280 (Fed.Cir.1985) (employee with right to appeal to MSPB has no independent cause of action in Claims Court), and it will not disrupt administration of the congressional scheme. See Community...